Negotiating with Liars: Puffery, Fraud, and Playing Defense in Settlement Negotiations

Barry Temkin, Partner | Mound Cotton

Barry Temkin is a partner at Mound Cotton. He is a litigator with extensive trial experience, having tried over fifty jury trials to verdict. He has also litigated numerous arbitrations, including securities, commercial and employment disputes. Barry also represents lawyers and law firms in professional responsibility matters, including conflicts, sanction proceedings, fee disputes, legal malpractice cases and proceedings before the attorney grievance committee.

• Education & Credentials

He is a graduate of the University of Pennsylvania Law School and the University of Rochester.

• Recognition & Leadership

Barry is an adjunct professor at Fordham University School of Law, where he teaches courses on securities regulation and professional responsibility. He has published articles on securities law and attorney professionalism in the Georgetown Journal of Legal Ethics, Law360, the Securities Regulation Law Journal, Seattle University Law Review, Securities Arbitration Commentator, and the New York Law Journal. He has been quoted in the ABA Journal, Investment News, the New York Law Journal, The Economist, the Wall Street Journal, Law360, the National Law Journal, American Banker, Lawyers U.S.A. and other publications.

Adjunct Professor, Fordham University School of Law, 2007–present; Super Lawyer, New York Metro 2021: Professional Liability: Defense, 2015-2023; Otto L. Walter Distinguished Writing Award, New York Law School, 2008.

• Professional Involvement

Barry has been a member of the FINRA (Financial Industry Regulatory Authority) Board of Arbitrators since 1999, and served for ten years as co-chair of the New York Country Lawyers’ Association Professional Ethics Committee. He has lectured on securities law, professional liability and legal ethics at the New York State Bar Association, the New York County Lawyers’ Association, the Association of the Bar of the City of New York, the Practicing Law Institute, the Futures Industry Association and numerous corporations and insurance companies.

Co-chair, New York County Lawyers’ Association Committee on Professional Ethics, 2006 –2016; Member, 2001–present; Member, Editorial Board of Oxford University Press, New York Rules of Professional Conduct; Member, Financial Industry Regulatory Authority (FINRA) Board of Arbitrators, 1999–present; New York County Lawyers’ Association, Committee on Futures and Derivatives; Volunteer Attorney, Trial Lawyers Care, 2001–2004.

• Experience

As an Assistant District Attorney in Brooklyn, he tried dozens of jury cases and served as a Senior Trial Attorney in the Homicide Bureau. He represents broker dealers, financial advisors, insurance brokers, financial firms and investment advisers in litigation, arbitration and regulatory investigations. He also litigates and tries commercial, construction and professional liability cases.

John B. Harris, Partner | Frankfurt Kurnit Klein & Selz, P.C

John B. Harris is a litigation partner with the New York City law firm of Frankfurt Kurnit Klein & Selz, P.C. He has more than 35 years’ experience representing clients in civil and white collar criminal matters, with a current focus is on the representation of lawyers and law firms.

• Education & Credentials

John is a graduate of Yale University and the New York University School of Law. He earned his B.A. cum laude from Yale University in 1978 and his J.D. from New York University School of Law in 1985, where he was a member of the Annual Survey of American Law. He is admitted in New York and Connecticut and before the United States District Courts for the Southern and Eastern Districts of New York, and he appears in SEC, FINRA, and Departmental Disciplinary Committee proceedings.

• Recognition & Leadership

He is a former Chair of the Professional Responsibility Committee of the New York City Bar Association and serves as a mediator for the United States District Court for the Southern District of New York.

Super Lawyers has recognized him for eighteen consecutive years, and he sat on Law360’s Legal Ethics Editorial Board in 2022. Within the New York City Bar Association he has also served on the Committee on Professional and Judicial Ethics, the Committee on Professional Discipline, the Judiciary Committee, and the Task Force on Multi-Disciplinary Practice. At the Anti-Defamation League he has chaired both the New York Regional Board and the National Civil Rights Committee.

• Professional Involvement

He sits as a Delegate to the House of Delegates of the New York State Bar Association and on its Professional Discipline Committee, and belongs to the American Bar Association, the New York State Bar Foundation, and the NYU Law Alumni Association. His writing on professional responsibility includes “Probing the Mysterious ‘Materially Adverse’ Standard for Attorney-Client Conflicts” in the PLI Chronicle and “Masking Tapes: An Analysis of the Law of Secret Recording in New York” in the New York Legal Ethics Reporter, alongside expert analysis columns for Law360. He presented “When the Lawyer Becomes the Source of Evidence” at the APRL Conference in San Antonio on February 6, 2026 and has taught “Current Ethical Issues for In-House Counsel” for the New York City Bar in 2024 and 2025.

• Experience

He regularly testifies as an expert witness on professional responsibility and legal ethics matters.
Before joining Frankfurt Kurnit Klein & Selz he was a partner at Stillman & Friedman, P.C. and at Ballard Spahr LLP, and earlier a reporter for The Hartford Courant. His defense work for lawyers and law firms includes a conflicts disqualification defense for a patent firm, a discrimination defense for a law firm, and the defense of an in-house lawyer accused of aiding and abetting fraud. Other representations include SEC v. Thrasher and the Crown Heights civil rights litigation on behalf of former New York City Mayor David Dinkins and Police Commissioner Lee Brown.

SESSION 1 – Puffery or Misrepresentation: What Lawyers May Say in Settlement Negotiations | 1:00pm – 2:00pm

This session examines the ethical and legal boundaries governing attorney statements in settlement negotiations, focusing on the line between permissible puffery and actionable misrepresentation under Model Rule 4.1, Rule 8.4(c), and ABA Formal Opinions 06-439 and 518. Attorneys will learn which categories of statements qualify for the negotiation-convention safe harbor under Comment [2], which statements cross into material misrepresentation, and how the half-truth doctrine and omission-based liability expand exposure beyond affirmative falsehoods. Attendees will leave with a working taxonomy of permissible, gray-zone, and impermissible statements they can apply immediately to their own negotiation and settlement practice.

BREAK | 2:00pm – 2:10pm

SESSION 2 – Detecting, Proving, and Remedying Deception in Settlement Negotiations and Mediation | 2:10pm – 3:10pm

This session equips attorneys with a practical framework for identifying deception during settlement negotiations and mediation, challenging fraudulent agreements after execution, and drafting defensive provisions that reduce exposure from the outset. Attendees will examine the evidentiary and procedural requirements for setting aside settlements obtained by fraud, the state-by-state landscape of mediation confidentiality exceptions, and the full menu of post-settlement remedies including FRCP 60(b)(3) motions, rescission, and direct tort claims. Attorneys leave with specific detection techniques, defensive drafting strategies, and an understanding of the ethical enforcement mechanisms available when opposing counsel crosses the line.